Justice Department Extends Deadline for Swimming Pool Compliance Accessibility under the Americans With Disabilities Act

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Hotel and resort owners are keenly interested in the Americans With Disabilities Act of 1990 (ADA), because of its multiple requirements for removing accessibility barriers that hinder disabled persons from use of recreational and other public facilities.   What isn’t as well known is that other groups whose activities may not be as “public” may also be covered by the ADA.  For example, private swimming pools of the kind usually found in residential subdivisions and condominium projects are not usually covered by ADA accessibility requirements, so long as they are used exclusively by residents and their guests.   However, if a swimming pool located in a residential community is made available to the public for rental or general use (i.e., for swimming lessons offered to the general public, or public rental for special events), the federal Department of Justice (DOJ), which prepares regulations interpreting the ADA, considers the pool to be covered by Title III of the Act (which deals with ADA compliance in public accommodations and commercial facilities).

Of special interest to such swimming pool owners is the fact that, on September 15, 2010,  the DOJ published its revised regulations for Title III  in the Federal Register, which include the so-called 2010 “Standards for Accessible Design.”  

Under Section 242 of the 2010 Standards, newly constructed or altered swimming pools, wading pools, and spas, must have an accessible means of entry and exit for persons with disabilities.   Existing pools must be made accessible only when to do so is “readily achievable” by the owner.    Whether accessibility is readily achievable is determined through a case by case assessment of the owner’s ability to provide access without much difficulty or expense.    The determination depends upon a number of inherently subjective factors described in the 2010 Standards and DOJ rules following it.

If the 2010 Standards apply to a swimming pool, the owner must provide at least two accessible means of entry for larger pools (those containing 300 or more linear feet of pool wall) and at least one accessible means of entry for smaller pools (less than 300 linear fee of pool wall). The same section requires that at least one entry point be a sloped entry or a pool lift.   The other entry point can be a sloped entry, pool lift,  transfer wall, or  transfer system.  Technical specifications for each entry type are included in Section 1009 of the 2010 Standards, viewable on the internet at http://www.ada.gov/2010ADAstandards_index.htm.    If an owner can provide a lift for disabled persons that meets the requirements of the 2010 Standards without much difficultly or expense, then the owner must provide one.  The lift required could be either a fixed lift or removable lift that complies with the 2010 Standards, depending upon which type is “readily achievable” by the owner.

The original deadline for compliance with the Section 242 Standard was March 15, 2012.     That’s old news, however.   More recently, on May 21, 2012, the DOJ issued a final rule stating that it was extending the compliance deadline for existing pool and spa access for the disabled until January 31, 2013.   On May 24, 2012, the DOJ followed up this announcement with two new guidance documents, both of which further explain the pool and spa accessibility requirements described in the 2010 Standards, also viewable on the internet at http://www.ada.gov/pools_2010.htm .   

The take-away from this discussion?  Whether  you are in the hospitality industry or a private community pool owner, don’t wait until a week before the extended compliance deadline to think about whether your pool must be made compliant and, if it is, how to comply with the 2010 Standards.   Further extensions of the deadline are by no means certain and if your pool or spa must be made compliant, figuring out which kind of retrofit access device best serves your particular facility  may be time-consuming and expensive.   Thoughtful preparation now will save high anxiety in January 2013.

 

Published In: Administrative Agency Updates, Civil Rights Updates, Commercial Real Estate Updates, Residential Real Estate Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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